Title:	K.R. -v- Director of Public Prosecutions; P.R. -v- Director of Public Prosecutions
Neutral Citation:	[2006] IESC 59
Supreme Court Record Number:	91 & 108/04
High Court Record Number:	2001 490 JR
Date of Delivery:	11/07/2006
Court:	Supreme Court
Composition of Court:	Denham J., Kearns J., Macken J.
Judgment by:	Denham J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Denham J. Link Kearns J., Macken J.

Between/

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1. These two appeals come on for hearing after the review of the jurisprudence in such cases taken by this Court in the judgment H. v. D.P.P. (Unreported, 31st July, 2006).

2. In the High Court both cases were decided in a single judgment given by Ó Caoimh J. on 30th January, 2004. The cases were heard sequentially by this Court and this judgment governs both cases.

3. K.R. and P.R. have sought by way of judicial review to prohibit or injunct their pending trials. The High Court refused the applications and it is against that refusal that they have appealed to this Court.

4. K.R. is charged with two counts of rape and one count of indecent assault allegedly committed in 1971, 1972 and 1979. The complainant was born in 1960, she first contacted the gardaí in 1997, and K.R. was arrested and charged in 1999.

5. K.R. was granted leave by the High Court (Murphy J.) on 31st day of July, 2001, to apply by way of application for judicial review for an order of prohibition prohibiting or injuncting the Director of Public Prosecutions, the respondent, and hereinafter referred to as 'the respondent', from further prosecuting K.R. on the charges preferred against him on Bill No. CC0118/00. The leave to apply for the reliefs was on the grounds:

(i) That the lapse of time between the dates of the commission of the alleged offences (between 1st January 1970 - 30th September 1976) and the date set for trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against K.R.

(ii) The delay by the respondent in charging and prosecuting K.R. in respect of the above alleged offences is, either by itself, or in conjunction with the lapse of time since the date of alleged commission of the alleged offences so great as to be oppressive, unfair and unjust to K.R. and in violation of his rights to a criminal trial in due course of law under the Constitution.

(iii) The lapse of time between the alleged dates of the alleged commission of the alleged offences and the date of trial is so great as to have caused and to continue to cause the applicant to suffer prejudice in the preparation and presentation of his defence.

In October, 1997, the complainant telephoned An Garda Síochána for the purpose of making a complaint alleging that P.R. had sexually assaulted her. On 21st January, 1998, members of An Garda Síochána spoke to P.R. and informed him of the allegations. In the affidavit of Detective Sergeant Gerard J. Roche sworn on 25th October, 2001, he describes the steps taken in the Garda investigation.

P.R. was granted leave to apply by way of judicial review for reliefs on the same grounds (i) and (ii) as granted to K.R., by the High Court (McKechnie J.), on the 23rd April, 2001.

7. Both cases came on for hearing before the High Court (Ó Caoimh J.) on the 18th and 19th December, 2002. A reserved judgment was delivered on 30th day of January, 2004, in which both applications were refused.

Applying the jurisprudence of that time the High Court reviewed the reasons for the delay in making a complaint of the alleged rapes and sexual abuse. This was the main issue before the High Court and on which there was evidence and cross-examination. The High Court was satisfied that the delay had been adequately explained and refused this aspect of the application.

As to the other issues raised, the learned High Court judge held:

"With regard to the alleged prejudice put forward by the applicants I am satisfied that the absence of certain witnesses identified by them is not such as to give rise to a situation where a fair trial cannot be had by them, I am satisfied in circumstances where the offences are alleged to have been committed in private that the absence of these witnesses in unlikely to result in a situation of an unfairness in the trial procedure itself.

I[n] find no case of prosecutorial delay to have been established in light of the evidence of Detective Sergeant Roche.

Finally, taking all the matters into consideration, I am satisfied that the applicants in each case, notwithstanding the difficulties that may be experienced by them having regard to the passage of time, have failed to demonstrate that such difficulties as may be experienced by them in defending the charges will result in a situation where there is a real and serious risk that they cannot obtain a fair trial. In light of these conclusions I am satisfied that I must refuse to the applicants the relief which they seek."

The learned trial judge erred in fact and in law by failing to hold that:-

(i) The lapse of time between the dates of the commission of the alleged offences (between 1st January, 1970 - 30th September, 1976) and the date set for trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against K.R.

(ii) The delay by the respondent in charging and prosecuting K.R. in respect of the above alleged offences is, either by itself or in conjunction with the lapse of time since the date of alleged commission of the alleged offences so great as to be oppressive, unfair and unjust to K.R. and in violation of his rights to a criminal trial in due course of law under the Constitution.

(iii) The lapse of time between the alleged dates of the alleged commission of the alleged offences and the date of trial is so great as to have caused and to continue to cause K.R. to suffer prejudice in the preparation and presentation of his defence.

(iv) The lack of particularity in the alleged offences of which it is proposed to try K.R. is such, either in itself or in conjunction with the lapse of time since the date(s) of the alleged offences, to suffer prejudice in the preparation and presentation of his defence.

9. Submissions were filed on behalf of K.R. and on behalf of P.R., and the respondent filed submissions in relation to each case. In addition oral submissions were made by Mr. Martin Giblin S.C. on behalf of each of the applicants and oral submissions were made by Mr. Shane Murphy S.C. on behalf of the respondent in the K.R. case and by Mr. Anthony M. Collins S.C. in the P.R. case.

10. The judgment of the High Court dealt at length with the reasons for the delay - in accordance with the jurisprudence of that time. However, this case has been listed for hearing after the review of the law in H. v. D.P.P. In that case the Court considered the jurisprudence which developed over the last decade in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged abuse, the complaint, and the preferment of charges against the accused. The Court held that in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in making such a complaint. It was held that the issue for a court on such an application for judicial review is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court did not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial. Consequently the reasons for the delay by the complainant are no longer an issue in these cases. At issue is whether there is a real or serious risk of an unfair trial.

11.1 The Oireachtas has not established a statute of limitations in relation to these crimes. This Court can not enter into that legislative field. Thus each case falls to be considered on its own facts, in light of the law.

11.2 The onus is on K.R. and P.R.. As Finlay C.J. stated in Z. v. D.P.P. [1994] 2 I.R. 476 at p. 50:

"This Court in the recent case of D. v. D.P.P. [1994] 2 I.R. 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances he could not obtain a fair trial."

12. Counsel on behalf of the applicant raised issues of general prejudice because of the delay, prosecutorial prejudice, process prejudice, and actual prejudice.

13. Actual prejudice

Counsel for K.R. submitted that there would be actual prejudice as both parents of the applicants are deceased and that the father of the complainant has died. He submitted that the absence of the parents as witnesses was prejudicial in a general sense because of the nature of the relationship between the families of K.R. and P.R. and that of the complainant. He said that, for example, the parents might have noticed something, such as a change in the demeanour of the complainant. He gave specific instances. He referred to the first alleged rape by K.R. and her statement that K.R.'s mother had sent her with K.R. to the field. There was a suggestion of a set up and that Mrs. R's evidence would be relevant. Or, what if Mrs. R. would have said she never sent the complainant to the field? Also, it was suggested that there was prejudice as after the alleged event the complainant went home and was upset. She stopped at her house. Her parents were fighting. She went to the river and was home late. She was asked why she was home late. Counsel spoke of relevant evidence being absent. However, her mother is still alive and therefore available. In relation to the suggested evidence of Mrs. R., it is entirely speculative.

Counsel also referred to a time when K.R. gave her sweets. There is evidence that Mrs. R. stated 'well somebody loves you'. Counsel submitted the absence of the mother as a witness now was critical.

In relation to P.R. it was submitted that there was general prejudice, but also actual prejudice. The actual prejudice was the absence of P.K. - who died in 1986/1987. The complainant has stated that she was assaulted at a certain venue by P.R. She says she only went there once with P.R. It was submitted that the absence of P.K. now prejudices his trial. However, it appears that the statement relates to a different time.

Counsel also referred to an assault on the complainant by P.R. in the car and the fact that the following day she did not go to work on the R. farm and that her parents gave out to her. Counsel submitted that if her parents had given out to her they would remember it. Or, if they said they did not, that it would be helpful to the respondent. Counsel submitted that this was not a far fetched proposition. Counsel submitted that K.R. and P.R. cannot get a fair trial because of the absence of these witnesses.

However, there was evidence before the learned trial judge on these issues, which he considered. He held that the absence of these witnesses is not such as to give rise to a situation where a fair trial cannot be had. He was satisfied that, in the circumstances where the offences are alleged to have been committed in private, the absence of these witnesses is unlikely to result in a situation of unfairness in the trial. This was a finding open to the learned trial judge on the evidence before him. Indeed, I am satisfied that it was a proper finding. I would not intervene with the decision of the High Court on this issue.

In these cases the alleged events took place in private, with no witnesses. It is well established jurisprudence that a criminal trial which will be essentially that of one person's word against another is not prohibited on that ground. As Geoghegan J. stated in D.D. v. D.P.P. [2004] 3 I.R. 172 at p.178:

"It has never been the law that a charge of rape or gross indecency or indecent assault cannot be tried if, to use a colloquialism, the trial is tantamount to "one person's word against another".

K.R. submitted also that there was prosecutorial delay. This would relate to the time from the making of the complaint to the arrest. In October, 1997, the complainant telephoned An Garda Síochána in Dublin for the purpose of making a complaint alleging that K.R. had abused her. The steps taken in the investigation were set out in the affidavits before the High Court. The evidence indicated a careful investigation, interviewing of relevant people, and gathering evidence from October, 1997, to the arrest in September, 1999. There is an explanation for the time taken. There was no evidence of inordinate or inexcusable delay.

The learned High Court judge held that he found no case of prosecutorial delay to have been established in light of the evidence of Detective Sergeant Roche. The trial judge had evidence upon which he could reach this determination. I would uphold the determination of the High Court that there was no blameworthy prosecutorial delay. Even if there was blameworthy delay, which I do not find, the test to be applied by the Court would then require a balancing exercise: P.M. v. Director of Public Prosecutions (Unreported, Supreme Court, 5th April, 2006) judgment of Kearns J., with whom Murray C.J., Denham J., Hardiman J. and Geoghegan J. agreed. Therefore this aspect of the appeal must fail.

15 Process delay

K.R. also raised the issue of process delay. However, the facts of this case do not describe such a situation. K.R. was arrested on the 27th September, 1999 and charged that day in the District Court. The case was before the District Court on 22nd November, 1999, 24th January, 2000, 22nd May, 2000, 14th June, 2000, 24th July, 2000, and 11th October, 2000. The Book of Evidence was served in June, 2000. On 11th October, 2000, the case was returned for trial to the Central Criminal Court. Thus this process took 13 months. K.R. was subsequently told that the date set for his trial was 17th December, 2001. The solicitor for K.R. wrote pointing out that he needed more time to prepare and further documentation. On 31st July, 2001, K.R. obtained leave to apply for judicial review - thereby stopping the criminal process.

In all the circumstances of the case I am satisfied that K.R. has not made out a case for the prohibition or injunction of his trial on this ground.

16. P.R.

There were similar time scales in the case of P.R. P.R. is charged with sexually assaulting the complainant between 1st January, 1970, and 30th September, 1976. At the time of the alleged offences the complainant was between 10 and 16 years of age. The complainant first complained to An Garda Síochána in October, 1997. In January, 1998, P.R. was interviewed. In June, 1998, he was contacted again. The investigation was completed in October, 1998, sent to the respondent, further information received, and in August, 1999, a decision was made to charge P.R. (as it was of K.R.). On 27th September, 1999, P.R. was arrested and charged. The time between the receipt of the complaint and the charging of P.R. was fully explained. There was no blameworthy delay. Therefore there is no necessity to take the next step and do the balancing exercise: P.M. v. D.P.P. This aspect of the appeal must fall.

Nor is there any case made out in process delay - even if it arose on the pleadings.

Nor has there been any case of actual prejudice made out. The absence of described witnesses is not such as to give rise to an unfair trial. The complainant's mother is alive, and the witness P.K. is peripheral to the issue. Nothing has been submitted which would in any way undermine the decision of the High Court.

17. Conclusion

The onus of proof in this application lies on K.R. and P.R. to show that circumstances have occurred which establish that by reason of the delay there is a real or serious risk of an unfair trial. They have failed to meet this onus of proof, on any of the grounds raised. There has been an element of clutching at straws.

I would dismiss the appeals and confirm the order and judgment of the High Court.